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II. Obligations arising from human rights standards

10. Freedom of thought, conscience, and religion

Everyone has the right to freedom of thought, conscience, and religion, which includes the freedom to manifest one’s religion or belief, either individually or in community with others, in public or private. This right applies to those for whom such manifestations may involve the use of drugs for religious or spiritual purposes.

In accordance with this right, States may:

i. Utilise the available flexibilities in the UN drug control conventions to decriminalise the possession, purchase, or cultivation of controlled substances for personal consumption.

In addition, States should:

ii. Consider exemptions within drug legislation allowing the cultivation and use of controlled substances for religious purposes, including in rituals and ceremonies.

Commentary:

International human rights law protects both the right to hold certain beliefs and the right to manifest those beliefs.[549] Furthermore, the International Covenant on Civil and Political Rights specifically provides for the protection of the rights of ethnic, religious, and linguistic minorities, in community with other members of their group, to profess and practise their religion. The Human Rights Committee has noted that prisoners should continue to enjoy their right to manifest their religion or belief to the fullest extent compatible with the specific nature of their imprisonment.[550] The International Labour Organization’s Indigenous and Tribal Peoples Convention similarly requires States to protect ‘the social, cultural, religious and spiritual values and practices’ of indigenous peoples and the integrity of these practices.[551]

While the right to have or adopt a religion or belief is unconditional, the manifestation of one’s beliefs may be subject to limitations in the interests of public health, public order, or the protection of the rights of others.[552] (See Section V.2.) Some jurisdictions have recognised exceptions to domestic drug control norms on grounds of religious belief, although the scope of the right and what it requires of States has been contentious. Jamaica has amended its legislation to allow Rastafarians the right to use cannabis in their religious ceremonies.[553] In Italy, a drug conviction was reversed on appeal because a lower court had not considered the arguments made by a Rastafarian defendant based on his religious beliefs.[554] In 2002, a challenge to South Africa’s general prohibition on cannabis use without an exemption for Rastafarians’ religious use did not succeed.[555] The case reached the Human Rights Committee, which recognised that ‘the concept of worship extends to ritual and ceremonial acts giving expression to belief, as well as various acts integral to such acts’ and that ‘the use of cannabis is inherent to the manifestation of the Rastafari religion’. But the Committee ultimately found that the prohibition of cannabis without a religious exemption was not a disproportionate limitation on the right to freedom of religion.[556] It should be noted that in subsequent proceedings, the same prohibition on the use, possession, and cultivation of cannabis for personal consumption was declared invalid by the South African Constitutional Court because it infringed constitutional protections on the right to privacy.[557] Thus, there are indications of jurisprudence evolving over time.

Relationship to the UN drug control conventions

In addition to establishing the general obligation to limit the use of narcotic drugs strictly to medical and scientific purposes,[558] the 1961 Single Convention on Narcotic Drugs requires that States abolish a range of traditional practices, including traditional uses of coca leaves, the quasi-medical use of opium, and traditional and religious uses of cannabis.[559] This prohibition creates a degree of tension with the human right to freedom of religion. However, the 1971 Convention on Psychotropic Substances is more open. Although it prohibits the use of Schedule I substances except for scientific and very limited medical purposes,[560] the Convention also permits States ‘on whose territory there are plants growing wild which contain psychotropic substances from among those in Schedule I and which are traditionally used by certain small, clearly determined groups in magical or religious rites’ to submit a reservation to exempt them from the relevant provisions, except for those provisions relating to international trade.[561] Canada, Mexico, Peru, and the United States submitted reservations for these traditional uses when they signed the Convention.[562] Moreover, States need not criminalise traditional or religious practices that fall outside of international prohibitions and may utilise the flexibilities under the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances to decriminalise the possession, purchase, and cultivation of controlled substances for personal consumption.[563]

  • 549. ^

    International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 18(1); Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 18; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 9; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 12; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 8; Arab Charter on Human Rights (2004), arts. 25, 30.

  • 550. ^

    Human Rights Committee, General Comment No. 22: Freedom of Thought, Conscience or Religion, UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), para. 8.

  • 551. ^

    nternational Labour Organization, Indigenous and Tribal Peoples Convention, C169 (1989), art. 5(a, b).

  • 552. ^

    Human Rights Committee, General Comment No. 22: Freedom of Thought, Conscience or Religion, UN Doc. CCPR/C/21/Rev.1/Add.4 (1993), paras. 3, 8.

  • 553. ^

    Jamaica, Dangerous Drugs (Amendment) Act (2015), para. 6.

  • 554. ^

    Cassazione Sesta Sezione Penale n. 28720 del 3 Luglio 2008, Corte Suprema di Cassazione (Italy), 3 July 2008.

  • 555. ^

    Prince v. President of the Law Society of the Cape of Good Hope [2002] ZACC 1 (South Africa); African Commission on Human and Peoples’ Rights, Prince v. South Africa, Merits, Communication No. 255/2002 (2004); Human Rights Committee, Communication No. 1474/2006: Prince v. South Africa, UN Doc. CCPR/C/91/D/1474/2006 (2007), para. 7.3.

  • 556. ^

    Human Rights Committee, Communication No. 1474/2006: Prince v. South Africa, UN Doc. CCPR/C/91/D/1474/2006 (2007), para. 7.2.

  • 557. ^

    Minister of Justice and Constitutional Development and Others v. Prince; National Director of Public Prosecutions and Others v. Rubin; National Director of Public Prosecutions and Others v. Acton and Others [2018] ZACC 30 (South Africa).

  • 558. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), art. 4(c).

  • 559. ^

    Single Convention on Narcotic Drugs (as amended by the 1972 Protocol), 520 UNTS 7515 (1961), arts. 49(2)(d–g).

  • 560. ^

    Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 7.

  • 561. ^

    Convention on Psychotropic Substances, 1019 UNTS 14956 (1971), art. 32(4).

  • 562. ^

    ‘Convention on Psychotropic Substances: Declarations and Reservations’, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI-16&chapter=6&lang=en.

  • 563. ^

    Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(2).

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